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The Fugitive Slave Law in Wisconsin, with Ref- 
^"■^ erence to nullification sentiment 



Vroman Mason, b. l. 



[From Proceedings of the State Historical Society of Wisconsin, 1895] 



MADISON 
Statk Historical Society of Wisconsin 

1895 



^ 



^ 




The Fugitive Slave Law in Wisconsin, with ReF' 
erence to nullification sentiment 



BY 

Vroman Mason, b. l. 



[From Proceedings of the State Historical Society of Wisconsin, 1895] 



MADISON 
State Historical Society of Wisconsin 

1895 



■M4I 



•\x» 



Y7\Z. HiSt.ScMSj' 



THE FUGITIVE SLAVE LAW IN WISCONSIN. II 7 



THE FUGITIVE SLAVE LAW IN WISCONSIN, WITH 
REFERENCE TO NULLIFICATION SENTIMENT. 



BY VROMAN MASON, B. L. 

[Paper presented at the Forty-third Annual Meeting of the State Historical Society of 
Wisconsin, Dec. 12, 1895.] 

I. — Anti-Slavery Sentiment, in 18^9. 

From the very beginning of her statehood, popular sentiment 
against slavery had been strong in Wisconsin; as in most of the 
other free States, her citizens were active in resenting the en- 
croachments of the slave power. 

In the winter of 1848-49, Congress was occupied in organiz- 
ing the territory acquired from Mexico; the great problem con- 
nected with this newly-acquired land being, of course, the 
slavery question. In the first weak of February, 18-49, Wis- 
consin instructed her senators and representatives as follows : ^ 

"Resolved, by the senate and assembly of the State of Wiscon- 
sin, That our senators in Congress be, and they are hereby in- 
structed and our representatives requested: — 

" 1st. To oppose the passage of any act for the government 
of New Mexico and California, or any other Territory now be- 
longing to the United States, or which may be hereafter ac- 
quired, unless it shall contain a provision forever prohibiting 
the introduction of slavery or involuntary servitude into said 
Territories, except as a punishment for crime. 

" 2nd. To oppose the admission of any more slave States into 
the Federal union. 

" 3rd. To exert their influence to procure the repeal of all 
laws sustaining slavery and the slave-trade in the District of 

^Laws of Wis. ,18^9, p. 172. 



Il8 WISCONSIN HISTORICAL SOCIETY. 

Columbia, or in any other place under the control of the na- 
tional government; and to secure the passage of laws prohibit- 
ing slavery and the slave-trade in all places under the exclusive 
jurisdiction of the Federal government. 

"Resolved, That his excellency, the governor, is hereby re- 
quested immediately to forward a copy of the foregoing resolu- 
tions to each of our senators and representatives in Congress, 
to be by them laid before Congress. " 

A bill to organize the Territories of New Mexico and Cali- 
fornia, with the Wilmot Proviso, was passed by the house. The 
senate refused to consider it, and late in the session passed the 
general appropriation bill for government expenses, with a 
" rider" organizing the said Territories and permitting slavery 
therein. On the last night of the session, the senate struck out 
its "rider," and passed the appropriation bill as it originally 
came from the house. This "rider," or amendment, was intro- 
duced and voted for by Senator Walker, a Democratic senator 
from Wisconsin, against the expressed wishes of the State legis- 
lature, as given above. The people of the State were justly in- 
dignant, and the legislature' passed the following i-esolutions, 
asking; him to resig-n his seat in the senate: 

"Resolved, That the course of Isaac P. Walker, one of the 
senators of this State in the Congress of the United States, in 
presenting and voting for an amendment to the general appro- 
priation bill, providing for a government in California and New 
Mexico west of the Rio Grande, which did not contain a pro- 
vision forever prohibiting the introduction of slavery, or in- 
voluntary servitude in said Territories, has outraged the feel- 
ings and misrepresented those who elected him to that station, 
and oj)eiily violated the instructions contained in the resolu- 
tions passed by this body on the subject of slavery, at its pres- 
ent session : 

"Resolved, That Mr. Walk(>r is requested immediately to re- 
sign his seat in the United States senate. 

" Resolved, That Hon. Hanry D^dge, our other senator, in 
voting against the proposition of Mr. Walker as he did on the 
20th of February last, has represented the views and wishes of 

*Assr,„l>!ij Jour., Wis.. 1SI9. p. 599. 



THE FUGITIVE SLAVE LAW IN WISCONSIN. I IQ 

his constituents on that subject, for which we express to him 
our most cordial approval of his course. " ' 

In spite of this, Walker still kept his seat in the senate, 
again contrary to the instructions of the State legislature. Yet 
the resolutions had their effect, for after this he voted on such 
questions with the anti-slavery side. 

II. — The Fugitive Slave Lctw of 1850. 

Meanwhile, the question of the organization of the Territories 
dragged on. California applied for admission as a State, Feb- 
ruary 13, 1850. Shortly before the application. Clay had sub- 
mitted a proposition to compi'omise the conflicting claims of 
the advocates of slavery extension and of slavery restriction. 
Among his compromising provisions, was one providing for a 
more rigid fugitive slave law. It directed and encouraged the 
surrender of fugitive slaves by United States commissioners in 
the North, without any trial by jury, and commanded all good 
citizens to aid in making arrests. The entire Wisconsin dele- 
gation, in both houses, voted against its passage. This bil 
as soon as introduced, was quite generally condemned by publ 
opinion in this State, — Whigs, Free-Soilers, and bolting Demo- 
crats being particularly outspoken against it. Nevertheless it 
became a law, the president signing the bill September 18, 1850. 
The act provided : 

1. For the appointment of commissioners by the United States 
courts in the States and Territories, whose duty it should be to 
hear the demands of claimants of fugitive slaves, and grant cer- 
tificates for the apprehension of the latter. 

2. That these commissioners should appoint assistants to ex- 
ecute their duties in the counties, and all of them should have 
the power to summon the 2^osse comitatus to their aid. 

3. That the testimony of the claimant, or agent, was to be 
prima facie evidence against the fugitive, whose evidence was 
not to be taken; and upon a hearing before any magistrate, 

1 With the exception of the last clause, these resolutions were rescinded 
in 1851. Resolutions to that effect may be found in Lawn of Wis., 1851, 
p. 437. 



I20 WISCONSIN HISTORICAL SOCIETY. 

justice of the peace, United States jud^e, commissioner, assist- 
ant, or agent, the fugitive was to be delivered up. 

4. Persons hindering the execution of the law were to be fined 
And imprisoned. 

5. That a certificate should be given from one State or Ter- 
ritory, for the pursuit of a fugitive, and his recapture in an- 
other State or Territory. That on the production of such cer- 
tificate, and of proof, oral or by affidavit, the officer should issue 
an order to deliver up the person claimed; and in case the 
prisoner was rescued, any judge or authorized officer might 
grant a certificate to that effect, and of the value of the pris- 
oner, on production of which at the United States treasury the 
sum should be paid, and should be a claim of the United States 
against the State from which the prisoner was taken. 

This act was severely condemned by various political conven- 
tions held that autumn. For example, at the Whig convention 
held at AYatorford, October 12,' it was resolved that "This bill, 
so odious in many of its features, merits the decided condem- 
nation of the people, and that no honorable means should be left 
untried to procure its early and unconditional repeal." At a 
"people's convention" of bolting Democrats, held in Waukesha 
in the early part of October, the following resolution was 
passed:- "Resolved, That the fugitive slave law, passed at the 
late session of Congress, in denying the trial by jury, the writ 
of hitheas corpus, the right of appeal and of calling witnesses 
in behalf of the fugitive from bondage, is directly subvei'sive of 
the principles of liberty, in violation of constitutional rights, and 
at war with the plainest dictates of hunumity. " Similar reso- 
lutions were passed at a meeting held at Milwaukee, to hear a 
report from Congressman Charles Durkee, of the acts of the 
late Congress.'' All of these resolutions were worded much alike; 
there was the same reference to "liberty," and to the "rights 
of man. " 

A e-oii vent ion of Free-Soilers was held at Water town, Septem- 
ber 15, 1S51. Leonard .1. l-'ai-well, of Dane, was nominated for 

' Reported iii Milwaukee Sentinel, Oct. 14, 1850. 

'•'/f/..Oct. .30,1850. 

='Mil\vauki'i' Smtim I, Oct. 30, 1850. 



THE FUGITIVE SLAVE LAW IN WISCONSIN. 121 

governor, and was elected on this ticket. The platform con- 
tained the following, in relation to the fugitive slave law: "Re- 
solved, That we are irreconcilably opposed to the fugitive slave 
law lately passed by Congress, believing that it is subversive of 
the first principles of natural liberty, and repugnant to the 
spirit of our republican institutions; that it desti'oys all se- 
curity for liberty, by invading the sacred right of trial by jury, 
and is universally and justly considered a most odious and op- 
pressive law; and we hereby tender our thanks to our delegations 
in Congre&s for their opposition to its passage. " 

The people were instructed, at different times, as to the atti- 
tude that should be taken in regard to the law. Durkee said 
that he was opposed to open resistance. He would not help 
capture a slave, when called upon by the officers, but would 
pay his fine for not doing so.' 

In his message given to the legislature January 9th, 1851, 
Governor Dewey said: "The fugitive slave act, so called, cer- 
tainly contains provisions odious to our people, contrary to our 
sympathies and repugnant to our feelings. * * * It is be- 
lieved that Wisconsin, as a State and people, in fulfilling its 
federal relations will be governed by that high sense of moral 
obligation that has hitherto actuated all the States, and that, 
in seeking relief from the objectionable features of the fugitive 
slave law, she will appeal to the constitutional remedy by 
asking Congress for such modifications as are consonant with 
our feelings and duty, and not by resisting the execution of its 
mandates. " - 

In Wisconsin, these more moderate views were at that time 
general, although, when occasion did present itself, the people 
not only refused to aid in carrying out the provisions of the 
fugitive slave law, but actually prevented iti operation. But 
that was four years later, and during that time they had waited 
in vain for its constitutional repeal. 

'Milwaukee Sentinel, Nov. 1,1850. 

^ Ajipendix to Senate Jour., Wiis., 1851, p. 23. 



122 WISCONSIN HISTORICAL SOCIETY. 

HI. — Tlie Glover Seizure. 

Wisconsin was not on the direct road between the South and 
Canada; therefore there was little need of open resistance to 
the obnoxious act. But one fugitive slave case, within our 
borders, was important not only as showing the attitude of 
the State to this law, but from a legal standpoint as well. 
The Booth case attracted the attention of the entire country, 
and caused a serious clash between the State and Federal au- 
thorities.' 

In the winter of 185i, a negro named Joshua Glover was en- 
gaged to work in the saw-mill of Rice & Sinclair, about four 
miles from Racine. Previous to that time he had worked at 
odd jobs, and was frequently seen in Racine, where he offered 
for sale various products of his labor. Glover was arrested as 
a fugitive slave, Friday, March 10, 1854. On that evening, just 
before dusk, there appeared at the door of Glover's house seven 
white men who had driven thither from Racine ; they were 
Charles Cotton and John Kearney, United States deputy mar- 
shals, with four assistants, and Ban. W. Garland, of St. Louis, 
the latter claiming to be the owner of Glover. 

Within the cabin, playing cards, were Nelson Turner, Will- 
iam Alby, and Glover, all colored. Upon the knock at the door 
being heard, Glover cried out, " Don't open it till we know who 
they are!" but Turner immediately went to the door and un- 
bolted it.- The do3r unbolted, Kearney rushed into the room 
with a bludgeon, dealing Glover a blow upon the head which 

'This account of the arrest of Glover, and his svibsequent release, I have 
gained from the Racine Advocate, the Milwaukee Sctitinrl, a special cor- 
resijondent of the Madison Journal, A. L. Worden of Milwaukee fan eye- 
witness of the rescue), and John Rycraft, one of Booth's fellow-defendants 
in the rescue trials. 

*I speak of this, to show that Turner probably aided the slave-owner in 
capturing the fugitive. It wa^ so believed at the time, and Turner was 
strongly condemned. Turner was known to have been at St. Louis the 
winter previous, and the newspapers asserted that he had an interview 
with Kearney but a few days before Glover's arrest. One does not like to 
bi'iieve that a negro would turn slave-catcher and give up his friend, but it 
seems to be a proven ease. 



THE FUGITIVE SLAVE LAW IN WISCONSIN. I23 

brought him down. A desperate struggle ensued; three men 
were unable to put irons upon Glover, and even when, with the 
help of others, they had succeeded, he broke the manacles from 
his wrists. He was finally placed in the wagon and driven to 
Milwaukee; his captors reached that city early Saturday morn- 
ing, and at once threw their prisoner, wounded and bleeding, 
into jail. 

When the news of the capture reached Racine, that same 
morning, the largest popular meeting ever held in that city, 
assembled on the court-house square. The following resolutions 
were read and adopted : ' 

" Whereas, A colored man, by the name of Joshua Glover, was 
kidnapped about four miles from our city last night about 8 
o'clock. He had been and at the time of his arrest was at work 
for one of our citizens (a faithful laboi'er and an honest man) : 

"Resolved, That we look upon the arrest of said Glover as an 
outrage upon the peaceful rights of this assembly, it having 
been made without the exhibition of any papers, by first clan- 
destinely knocking him down with a club, and then binding 
him by brute force and carrying him off. 

" Resolved, That we, as citizens of Racine, demand for said 
Glover a fair and impartial trial by jury, in this the State in 
which he has been arrested, and that we will attend in person 
to aid him, by all honorable means, to secure his unconditional 
release, adopting as our motto. The Golden Rule." 

The following resolution was also proposed, and adopted 
by the meeting; "Resolved, That inasmuch as the senate of 
the United States has repealed all compromises heretofore 
adopted by the Congress of the United States,- we, as citizens 
of Wisconsii], are justified in declaring and do hereby declare the 
slave-catching law of 1850 disgraceful and aha repealed. " 

This is one of the earliest of the many nullifying resolutions 
passed by mass-meetings throughout the country, in regard to 
the "slave-catching" act. Most of the resolutions passed at 
this time did not go quite so far as this. Many of them pro- 

' These resolutions are from the Racine Advocate . 

^ Reference is here made to the Nebraska legislation repealing the Mis- 
souri Compromise, then before Congress. 



124 WISCONSIN HISTORICAL SOCIETY. 

nounced the fugitive slave law " practically " annulled, showing 
the dislike of the framers to carry out the idea to its logical 
conclusion. After adopting these resolutions, a finance com- 
mittee was appointed by the Racine people, to obtain means to 
defray the expenses of Glover's trial; after which, the meeting 
adjourned to one o'clock. On re-assembling at that time, it 
was resolved to send a delegation to Milwaukee to carry into 
effect the resolutions passed at the morning session, so that the 
afternoon boat to Milwaukee had on board about a hundred cit- 
izens of Racine, who were determined that justice should be 
done to Glover. 

IV. — The Rescue of Glover. 

In the meantime a telegram had been sent to Sherman M. 
Booth, editor of the Milwaukee Free Democrat, an anti-slavery 
paper, telling him of the capture of the negro. On Saturday 
morning, Booth came into his newspaper office and said that 
he hal "business on hand," he "must get a horse right after 
dinner, and ride the town." This he did. Stopping at the 
corner of each block, and rising in his saddle, he loudly shouted: 
"Freemen! To the rescue! Slave-catchers are in our midst! 
Be at the court-house at two o'clock!" Upon this notice, citi- 
zens of Milwaukee assembled to the number of upwards of five 
thousand on the court-house square, where they were addressed 
by some of the leading men of the town. Previous to this meet- 
ing, a writ of habeas corpus had been issued for Glover, by 
Judge Jenkins, of the Milwaukee county court. The sheriff re- 
fused to serve the writ and take the man from the custody of 
the United States marshal, on account of the impression which 
he is said to have received from Judge Miller, the Federal judge, 
that it would not be right for him to do so. The meeting there- 
fore appctintcd u committee of vigilance and protection, to see 
lliat (Hover had a fair trial. Prominent members of this com- 
mittee were Iferbert Reed, S. M. Booth, Byron Paine, and John 
Rycraft. After full discussion, it was determined by them 
that they, eithci- as a eommittee, or as individuals, should not 
counsel or pi-nnit any viohition of the law. 



THE FUGITIVE SLAVE LAW IN WISCONSIN. 1 25 

The excitement continued, and spread to all parts of the city. 
At 5 o'clock the Racine deleg;ation arrived by boat, and were 
escorted to the court-house square. By this time the local 
militia had been called out to preserve order, but they failed to 
appear. At 6 o'clock, just after Booth had finished speaking, 
the mob, headed by Rycraft, demanded the prisoner ; and on 
being refused, battered in the jail door with a heavy stick of 
timber, and, taking Glover out, placed him in a wagon and ran 
him down to Clinton street, the negro lifting his manacled 
hands and shouting, "Glory! Hallelujah!" The negro was 
taken charge of by an " underground railroad " agency, and 
finally put on board a schooner clearing for Canada, which 
country he reached in safety. Garland and the deputies were 
arrested, charged with kidnaping and assault and battery, but 
were subsequently released by Judge Miller. 

The Glover rescue caused considerable excitement in Wis- 
consin, and it even spread to other States. The time and place 
were most favorable to resistance of slavery laws. Southeast- 
ern Wisconsin was one of the three strongest Free-Soil centers 
in the country. Thon too, the Kansas-Nebraska bill was pend- 
ing in Congress, and at this time had already passed the 
senate. By the Compromise of 1820, slavery had been forever 
prohibited in these two Territories; but this bill declared that 
said Compromise was inconsistent with the principle of non- 
interference with slavery by Congress, and it was therefore re- 
pealed and rendered void by the Compromise of 1850, so that 
hereafter each Territoi-y, whether north or south of the parallel 
of 36^^ 30', should admit or exclude slavery as its people should 
decide. With the anti-slavery sentiment as strong as it was in 
Wisconsin, the arrest of a fugitive slave here, under any cir- 
cumstances, would have greatly excited the people; but the 
pending of the Kansas-Nebraska bill, with the proposition to 
abrogate the Missouri Compromise, made the people strongly 
indignant. They believed they had been treacherously dealt 
with, and so believing would not be zealous to aid in enforcing 
a law for the reclamation of fugitive slaves. 

The feeling in favor of the rescue was general thi^oughout the 
State. With few exceptions, the newspapers justified the act. 



126 WISCONSIN HISTORICAL SOCIETY. 

The Madison Journal said: > "Such has been the termination of 
the first attempt in Wisconsin to enforce the odious fugitive 
slave law. While every thinking man must dislike to see the 
laws of the land trampled upon and the mob triumphant, he will 
feel a stronger motive for which dislike is altogether too tame 
a word, that our law-givers have passed enactments so inher- 
ently unjust that no good man can or will obey them." 

In speaking of the affair, the Milwaukee Sentinel said:^ "We 
do not justify or believe in breaking laws or jails, as a general 
thing, and would much rather see the one obeyed and the other 
intact; but neither laws nor jails will stand against the people 
when they think their sacred rights are involved. They evi- 
dently thought so the other day. " 

This, from the Chicago Tribune:'' "We regret such disturb- 
ances of the public tranquillity; but slave-hunters must learn, 
if they have not learned already, that the days of kidnaping are 
about over; and, if they desire to escape the punishment that 
persons engaged in that business deserve, they will keep clear 
of Northern Illinois and Wisconsin. " * 

A still better way of getting in touch with the public opinion 
of the time is by noting the proceedings and resolutions of 
mass-meetings. Most of these meetings were called to take 
action against the Nebraska bill. The resolutions passed at 
such meetings usually included one sympathizing with the 
Glover rescue, and thanking the participators for the part they 
took. Some meetings were called solely to act in regard to 
the Booth-Glover affair. The following ai'e typical resolutions. 
One passed at Union Grove, March 27, reads :'^ "Resolved, That 
we the people of Union Grove and vicinity send our hearty 
thanks and congratulations to the citizens of Milwaukee and 
Racine for their courageous conduct in rescuing our felloro-citi- 

' Issue of March 14, 185i. 

' March 14, 1854. 

'Quoted in Milwaukee Srntlnrl, March 15, 1854. 

•»! have taken these papers as fairly representing the feeling in the 
North, avoiding the opinions of extreme anti-slavery papers, such as the 
Milwaukee Fnr Democrat, and Racine Adrocafc, on the one hand, and 
jiapcrs like the conservative Milwaukee Nrirf< on the other. 

'The resolutions were st'nt to the Racine Adroaiff for publication. 



THE FUGITIVE SLAVE LAW IN WISCONSIN. 12/ 

zen, Glover, from the grasp of the man-stealer and his associates, 
the Uiiited States officers ; while we unqualifiedly condemn the 
infamous conduct of D. F. Houghton, of Dover, and Deputy- 
Marshal Kearney, of Racine, for assisting in the capture of said 
Glover. " 

Syracuse, N. Y., had previously been thrown into a great 
state of excitement on account of a slave rescue, so it is not 
surprising that the Glover case attracted the attention of the 
citizens of that place. A meeting was called for March 22, to 
express sympathy with the Wisconsin rescue. One of the reso- 
lutions passed at the meeting was: ^ "Resolved, That the citi- 
zens of Syracuse, in the early and triumphant days of the Fugi- 
tive Slave Law, made one pledge to all the world — and kept 
it — and that we now offer to join with Milwaukee and Racine, 
and all our sister cities of the North, in a holy confederacy, 
which, by all that is veuerable in the memory of our fathers, all 
that is glorious in the structure of our institutions, all that is 
precious in the reputation of our country, all that is imperative 
in the claims of humanity, all that is solemn in the command- 
ments of God, shall swear that no broken-hearted fugitive shall 
ever again be consigned to slavery from the North under the 
accursed act of 1850." 

The most important meeting of all, was held at Young's Hall, 
Milwaukee, April 13 and 14.- This was a State convention, 
called by notices in the press, to give expression to general 
public sentiment.. Delegates were present from all of the set- 
tled parts of the commonwealth. A long series of resolutions 
was passed, including the following quotations from the Vir- 
ginia and Kentucky resolutions: "Resolved, That we do explic- 
itly and peremptorily declare that we view the powers of the 
Federal government as i-esulting from the compact to which the 
States are parties; as limited by the plain sense and inten- 
tion of the instrument of that compact — the Constitution; as 
no further valid than they are authorized by the grants enumer- 

' Reported in SyreLCUse Evening Chronicle: quoted by Racine Weekly 
Advocate, March 30,1854. 

^Full reports of this meeting can Vje found in the Milwaukee Sentinel 
and Racine Advocate, the next issue after the meeting. 



128 WISCONSIN HISTORICAL SOCIETY. 

ated in that compact; and that in the case of a deliberate, pal- 
pable, and dangerous exercise of other powers not granted by 
the said compact, the States who are the parties thereto have 
the right and are in duty bound to interpose for arresting the 
progress of the evil, and for maintaining, within their respect- 
ive limits and authorities, rights and liberties appertaining to 
them. That the government, created by this compact, was not 
made the exclusive or final judge of the extent of the powers 
delegated to itself, since that would have made its discretion 
and riot the constitution the measure of its power; but that, as in 
other cases of compact among parties having no common judge, 
each party has an equal right to judge for itself, as well of in- 
fractions, as of the mode and measure of redress. " 

Other resolutions were passed, declaring the fugitive slave 
law unconstitutional, and promising aid and sympathy to the 
Glover rescuers. At this convention, a State league was 
formed, irrespective of parties, and the following officers elected: 
Dr. E. B. Wolcott, president; A. H. Bielfeld, secretary; C. E. Wun- 
derly, treasurer; Ira C. Paine, vice-president. This league 
was a forerunner of the Rapublican party, in Wisconsin. 

V. — Arrest of B')oth. State Supreme Court Decides the Fugitive 
Slave Law Unconstitxitional. 

A long and expensive series of legal actions against S. M. 
Booth,' the editor of the Free Democrat^ began on March 15, 
1854. That day, he was arrested on a warrant from the 
United States commissioner, Winfield Smith, on the charge of 
"aiding and abetting" in the escape of Joshua Glover, the fugi- 
tive slave, on the Saturday previous. On motion of his coun- 
sel, hearing was postponed till the next Tuesday, Booth being 
meanwhile allowed to go at large on parole. The examination 
began March 21, and lasted three days.^ The case was prose- 

' Garland brought a civil suit against Booth, for the value of the slave, 
and recovered damages. Other arrests were also made in connection with 
the Glover rescue; but all of the issues were V)rought out in the criminal 
suits against Booth, hence I have confined myself to those. 

•The complete account of the examination is in the Milwaukee Sentinel 
for tho days following. 



THE FUGITIVE SLAVE LAW IN WISCONSIN. 1 29 

cuted by the district attoi-ney, J. R. Sharpstein. James H. 
Paine was Booth's attorney, 

Many witnesses were called, from whom was received a great 
deal of conflicting testimony. It was shown that it was largely 
due to the efforts of Booth that the mass-meeting was called 
In his speech at the meeting, Booth discussed the fugitive slave 
law, which he said was unconstitutional. He counseled his 
hearers against violence, but said that if all present felt as he 
did, he knew what would be done. After all the testimony was 
in, Booth made a rather sensational speech, which was received 
with great applause and enthusiasm by the large audience in 
attendance on the trial. In one place he said: "I am bold to 
say that, rather than have the great constitutional rights and 
safeguards of the people — the writ of habeas corpus^ and the 
right of trial by jury — stricken down by the fugitive slave 
law, I would prefer to see every Federal officer in Wisconsin 
hanged to a gallows fifty cubits higher than Haman's. " Booth 
was loudly cheered at this point. After he had finished, Paine 
addressed the court in a long argument for the defense, the 
principal point raised by him being, that no evidence had been 
offered showing that Glover was a fugitive, or that he was 
owing labor or service to G-arland, in accordance with the laws 
of Missouri. Sharpstein followed, for the United States. The 
commissioner held Booth to bail in the sum of $2,000, for his 
appearance at the United States court. The prisoner gave the 
requisite bail, Dr. E. B. Wolcott becoming his surety, and 
was discharged from the custody of the marshal. 

Booth had his bailor surrender him, May 26, and the next 
day made application to Justice A. D. Smith, of the State su- 
preme court, for a writ of habeas corpus. In moving for the 
discharge of Booth, his counsel, — this time, Byron Paine, — 
made a notable speech, taking the compact view of the Consti- 
tution, and attacking the constitutionality of the fugitive slave 
law. The following are the principal points made by him: 

1st. Congress has no constitutional power at all to legislate 
for the recapture of fugitives from labor; but the clause in the 
Constitution relating to that subject is a mere article of com- 



130 WISCONSIN HISTORICAL SOCIETY. 

pact between the States, depending for its observance entirely 
on tlaeir integrity and good faitli. 

2nd. Admitting that Congress has the power to legislate, still 
the law is unconstitutional, because it provides that any person 
claimed as a fugitive may be reduced to a state of slavery with- 
out a trial by jury. 

3rd. It is unconstitutional because it vests the judicial power 
of the United States in court commissioners who are removable 
at the pleasure of the court, and not receiving a fixed com- 
pensation, contrary to the provision of the constitution, that 
" the judicial power of the United States shall be vested in one 
supreme court, and in such inferior courts as the Congress may 
from time to time ordain and establish. The judges of the 
supi-eme and inferior courts shall hold their offices during good 
behavior, and shall at stated times receive for their services a 
compensation which shall not be diminished during their con- 
tinuance in office. " 

The writ asked for was granted, and Booth was discharged. 
Judge Smith held that every citizen has a right to try every 
enactment of the legislative power by the fundamental law of 
the land, and to resist unconstitutional enactments, though he 
does the latter at his peril. After examining at length the law 
of the United States, and the writ, he concluded that the latter 
was clearly defective, and for that reason alone the prisoner 
was entitled to his discharge. But the most important part of 
his decision was that relating to the constitutionality of the 
act of 185U. Judge Smith first discussed the origin and history 
of legislation on the subject of persons held to labor or service. 
He held that the article in the Constitution was merely a com- 
pact by the contracting parties of the Constitution, by which 
the free States were to be bound to provide legislation, under 
due course of law, and after exunii nation of facts, for the return 
of such persons; but that no power was conferred upon Congress 
to legislate upon the matter, and that it was the duty of the 
States to provide such legislation. It was held, further, that 
the Constitution contemplated an examination into the preten- 
sions of the claimant of the fugitive, to be made where the 



THE FUGITIVE SLAVE LAW IN WISCONSIN. I3I 

latter is presumed to be free; while the act of 1850 made the 
decision or warrant of a judge or commissioner a judgment in 
fact, without trial or examination. In order to ascertain to 
whom "such service or labor is due," examination and inquiry 
must be made. If service or labor is due, the fugitive must be 
given up ; but the fact must be ascertained by trial. The suit to try 
this fact was not a suit in equity or admiralty, and must be at 
common law; hence a trial by jury must be demanded properly. 
The act of 1850 was unconstitutional, in that it violated the 
provisions which guarantee that no person shall be deprived of 
liberty without due process of law. The summary proceedings 
under the act of 1850 clearly violate this provision. The judge 
concluded by suggesting that the strict performance of their 
duties by the States and the Federal government, and their con- 
finement within their own limits, were the only means of avoid- 
ing collisions. He took a very pronounced attitude in regard 
to State sovereignty, saying: "To admit that the Federal judi- 
ciary is the sole and exclusive judge of its own powers, and of the 
extent of the authority delegated, is virtually to admit that the 
same unlimited powers may be exercised by every other depart- 
ment of the general government, both legislative and executive, 
because each is independent of and co-ordinate with the other. 
* * * Every day's experience ought to satisfy all, that the 
States never will quietly submit to be disrobed of their sov- 
ereignty — submit to the humiliation of having the execution 
of this compact forced upon them, or rather taken out of their 
hands by national functionaries; and that too on the avowed 
ground that they are so utterly wanting in integrity and good 
faith, that it can be executed in no other way. On the con- 
trary, if the Federal government would abstain from interference, 
the States would adequately fulfill all their duties in the premises, 
and peace and order would be resumed. 

"But they never will consent that a slave-owner, his agent, 
or an officer of the United States, armed with process to arrest 
a fugitive s'.ave from service, is clothed with entire immunity 
from State authority, to commit whatev^er crime or outrage 
against the laws of the State ; that their own high prei'ogative 
writ of habeas corpus shall be annulled, their authority defied, 
10 



132 WISCONSIN HISTORICAL SOCIETY. 

and their officers resisted, the process of their own courts con- 
temned; their territory invaded by Federal forces, the houses of 
their citizens searched, the sanctuary of their homes invaded, 
their streets and public places made the scene of tumultuous and 
armed violence; and State sovereignty succumb, paralyzed and 
aghast, before the process of an officer unknown to the Consti- 
tution and irresponsible to its sanctions. At least such shall 
not become the degradation of Wisconsin, without meeting as 
stern remonstrance and resistance as I may be able to interpose, 
so long as the people impose upon me the duty of guarding 
their rights and liberties, and of maintaining the dignity and 
sovereignty of the State. " ' 

The case was argued before a full bench of the supreme court — 
Edward V. Whiton, chief justice; Samuel Crawford and Abram D. 
Smith, associate justices — on July 19. The decision of Judge 
Smith was affirmed, and Booth was discharged, the court hold- 
ing that the State court had jurisdiction of the common-law 
writ of habeas corjyus, and to hear and determine the same, con- 
ferred upon it by the constitution of the State, independent of 
any legislative action in reference thereto. The fugitive slave 
act was held to be unconstitutional and void, because: (I) it 
did not provide for a trial by jury, to determine that the al- 
leged fugitive owed service to the claimant by the laws of an- 
other State; (2) because of the unconstitutionality of the com- 
missioners' powers; and (3) because any one, by the said act, 
alleged to be a fugitive slave, might be arrested and deprived 
of his liberty without "due process of law." Upon the question 
of the constitutionality of the fugitive slave law. Judge Craw- 
ford dissented, granting the writ upon the minor grounds of the 
insufficiency of the commitment. 

October 26, the marshal sued out a writ of error, returnable 
to the United States supreme court on the first Monday of De- 
cember, 1854. 

The Wisconsin supreme court received a strong backing, on 

' Unfortunately, Paine's brief is not in the State law library. His speech, 
however, was printed and issued as a campaign. document, and is found in 
the law library, in Law Pampldcts, vol. 25. The report of the Booth 
ease is found in Win. lirports {Dinnt'i^ .Vo^r.s), iii., pp. 1-135. 



1 



THE FUGITIVE SLAVE LAW IN WISCONSIN. 1 33 

the part of the citizens of Wisconsin and of the North. Still 
there was a strong minority, not in numbers but in force, who 
while they were opposed to the fugitive slave law, nevertheless 
thought that the State sourt had gone far beyond its powers. 
But the majority thought otherwise. The New York Tribune, 
in giving an account of the decision of the court, headed its 
editorial, "Glorious Wisconsin!" By his arguments, Paine 
came to be classed among the strong anti-slavery agitators of 
the country. In a letter of congratulation, written him Novem- 
ber 24, 1854, Wendell Phillips said: "I cannot see that you 
leave anything else to be added. I congratulate you most sin- 
cerely and rejoice we have so able an ally in our dread fight. " 
Charles Sumner wrote the following letter:' 

Washington, 28th Dec, '54. 

My Dear Sir — I have a copy of your admirable arg't against the Fug. 
Bill in a newspaper — somewhat the worse for wear. It occurs to me that 
it has been printed in a pamphlet. If so, and you can spare a copy, pray 
let me have it. 

I have not yet seen Judge Smith's opinions in their final form, as I un- 
ierstood he would prepare them for the Reports. Are they yet ready? 

I trust that Wisconsin will not bate a jot of her grand position. She 
will help make history. 

Eemember me kindly to your faithful father and believe me, my dear sir, 

Sincerely yours, 

Charles Sumner. 

P. S. I had a special regret in leaving Wisconsin without seeing more 
)f you. 
Byron Paine. 

yi.— Booth's Trial. 

Booth did not long remain at liberty. The United States 
iistrict court, Judge Miller presiding, commenced its summer 
.erm at Madison; and the grand jury found indictments against 
Messrs. Booth, Rycraft, and others, for their participation in the 
Jlover rescue Upon these indictments, Booth was rearrested. 
ie went to jail, and his counsel once more applied to the 
itate supreme court for a writ of habeas corjJus. It was de- 

' Copies of both of these letters are in possession of the Wisconsin His - 
orical Society. 



134 WISCONSIN HISTORICAL SOCIETY. 

nied on the ground that the United States court had obtained 
jurisdiction and that the State court ought not to interfere 
until the Federal court had heard the case and pronounced judg- 
ment. The fall term of the United States district court came on. 
Booth was confined to his bed by severe illness, and his case 
went over. John Rycraft, however, was tried under the indict- 
ment found against him in July, convicted, and sentence deferred. 

In January, 1855, the United States court again convened. 
The grand jury found new bills of indictment against Booth and 
several others. The trial began Januai'y 10, and lasted three 
days.' Sharpstein was assisted in the prosecution by Edward G. 
Ryan, a prominent attorney, afterwards chief justice of the 
State. The jury found a verdict against the prisoner, finding 
him guilty of several of the counts charged. Motions were at 
once made in arrest of judgment, and for a new trial. The 
foj'm of the indictment was challenged, the sufficiency of proof 
disputed, and evidence offered that one of the jurors had pre- 
judged the case. The judge overruled the motions, and pro- 
nounced sentence. Booth was condemned to one month's imj^ris- 
onment, $1,000 fine, and costs of prosecution — ,^1,451 in all. 

The news of the conviction created intense excitement in Mil- 
waukee, and elsewhere throughout the commonwealth. Meetings 
were held in many parts of Wisconsin, at which very strong 
resolutions were passed, and funds subscribed for the further 
defense of the prisoners. Each subscriber generally gave 
some small amount, — a dollar or two, — although several very 
large subscriptions were received. The resolutions passed 
at the5e meetings, — in fact, the attitude of Wisconsin for the 
next five years, ^ must have made political students believe 
that the days of the Virginia and Kentucky resolutions, and of 
South Carolina nullification, had returned to stay. 

The Milwaukee Sintlnel reported that "one of the largest and 
most enthusiastic meetings ever held in Milwaukee " met at 
Young's Hall, Friday evening, January 2G, 1855. Hand-bills 
had been circulated about the streets with the now familiar 
heading, "Freemen! to the Rescue!" the words shouted by 



'Full reports of thr Iri.il an- f.mnil in tlir Milwaukee Sentinel and the 
Riicine Advoc(i/< . 



THE FUGITIVE SLAVE LAW IN WISCONSIN. 1 35 

Booth as he rode up and down the streets, calling the meet- 
ing which led to the rescue of G-lover. These watch-words of 
Booth were often quoted, being the common heading for calls 
for "Booth meetings." Among the resolutions passed at this 
Milwaukee gathering were the following: 

"Resolred, That, believing the fugitive slave act to be wrong 
in itself and in gross violation of our constitutional rights, and 
heartily responding to the decision of our State supreme court, 
which has pronounced that act unconstitutional and void, we 
hold that it has no binding effect upon us or ours, and we re- 
pudiate all obligation to obey its unlawful and unconstitutional 
requirements. 

"Resolved, That we call upon the legislature of the State, now 
assembled, to do whatever in them lies to protect the citizens of 
this State from the pains and penalties of this inhuman and 
illegal act; to prohibit all magistrates or other officers, holding 
office by virtue of any law of this State, from rendering any 
official assistance in the capture or detention of any persons 
claimed as fugitives from slavery ; and to forbid the use of all 
jails or prisons for the confinement of persons arrested or con- 
victed under the provisions of the fugitive slave act. " ' 

The same resolutions were adopted at Fox Lake, January 31.- 
A meeting at Oakland, Jefferson county, January 30, passed 
vigorous resolutions, of which one was as follows:' "Resolved, 
That the imprisonment of these our fellow-citizens. Booth and 
Rycraft, is only indicative of the liability we are all under of 
having our liberty taken from us, and our most sacred rights 
being involved; and that we should not only assist them in re- 
gaining their liberty, but also be prepared to resist, even at tJie 
expense of life, the encroachment of this ' sum of all villainies.' " 

A childish resolution was passed in the same town. It serves 
to show how angry and excited the people were: "Resolved, 
That we cannot look on the course of Judge Miller with the 
' least degree of allowance, ' and that we regard him as a dis- 
grace to the name of judge, a tyrant when clothed with a little 
brief authority, an old Granny and a miserable Doughface. " 

' Wisconsin passed a Personal Liberty Act in 1857. See post, p. 158. 

' Sent to Milwavikee Sentinel for publication. 

* Milwaukee Free Democrat, first week in February. 



136 WISCONSIN HISTORICAL SOCIETY. 

A small meeting held at Spring Grove, C4reen county, re- 
solved ^ "That we will see Booth and Ryeraft out of their 
troubles, if \i;e luive to do it at the 2)oint of the bayonet. " No other 
resolution which I have found, went as far as this. Some merely 
condemned the fugitive slave law, and asked for its repeal. 

After the trial, the counsel for the prisoners once more ap- 
pealed for help to the supreme court of the State. A writ of 
habeas corpus was applied for and granted. ■ 

It being understood that the Milwaukee sheriff would leave 
with his prisoners for Madison, on Monday morning, January 29, 
at seven o'clock, the people began to assemble at that time to es- 
cort Booth and Ryeraft to the station. Punctually at the hour 
named, the church-bells rang and cannon thundered. In a short 
time nearly two thousand people had collected on the ground, 
being marshaled in procession by Dr. E. B. Wolcott, led by a 
band of music in a four-horse sleigh, in the center of the col- 
umn being the sheriff with his prisoners, in a similar sleigh. 
The line of march was taken up along Jackson, Wisconsin, 
Spring, and Third streets to the railroad station. As they 
passed Judge Miller's house, the band played "Jordan is a hard 
road to travel," and the people groaned and hissed; at the home 
of Booth, and other points on the route, they gave repeated 
cheers. Arrived at the station. Booth and Ryeraft, in obedi- 
ence to popular call, climbed to the top of the car, where each 
made a short speech expressing his acknowledgments for the 
sympathy and support shown. The morning was cold, the deep 
snow and severe wind predisposing everybody to keep within 
doors; nevertheless, there was a large crowd at the station. 
There could be no mistaking the spirit that animated the people. 
The following Saturday, Booth and Ryeraft returned free 
men. The decision was unanimous, although Judge Crawford 
still dissented on the nuxin issue. Much of the old ground, of 
compact and State rights, was again gone over. The court held 
that the power to guard and protect the liberty of the indi- 
vidual citizen is among the reserved powers of the States, 
never relinquished by them except in cases specified by the con- 
stitution of the United States. In this connection. Chief Jus- 



' Milwaukee Free 1)< morrat. 



THE FUGITIVE SLAVE LAW IN WISCONSIN. 1 37 

tice Whiton said: ' "It will not be denied that the supreme 
court of a State in which is vested, by the constitution of the 
State, the power to issue writs of habeas coj'jjus, and to de- 
cide the questions which tbey present, has the power to release 
a citizen of the State from illegal imprisonment. Without this 
power, the State would be stripped of one of the most essential 
attributes of sovereignty, and would present the spectacle of a 
State claiming the allegiance of its citizens, without the power 
to protect them in the enjoyment of their personal liberty upon 
its own soil. * * * In my opinion, the Stale government and 
State courts are not reduced to this humiliating condition. They 
are not obliged to look on and see the citizens of the State 
imprisoned for no lawful cause, without the power to grant that 
relief which all governments owe to those from whom they claim 
obedience. " 

After the decision, Charles Sumner wrote the following letters 

to Paine: - 

Washington, 18tii Jun. '56. 

My Dear Sir — You touch the question to the quick. For a long time I 
have seen it as you do. If the Supreme Court has the power which it 
claims, then are all the rights of the States subordinated to this Central 
Power. 

I am disposed to believe that the authors of the Constitution did not 

foresee the dilemma presented. 

If the North were really aroused, the question would be settled or avoided, 
while State Rights would be secured. It were well that the .srif-drfcnsirr 
power of the States should be recognized like that Srnati/^ coiisulfuH of 
Cicero, tanqaam. gladim in va;fina—; but that the occasion for its 
exercise might be avoided. 

But surely we have as great cause for complaint now as can ever be an- 
ticipated. What usurpation more intolerable than the Fug. Bill can be 

hatched? 

I liave read Judge Smith's opinions. He has placed the lovers of con- 
stitutional freedom under renewed obligation. 

It will give me pleasure always to hear from you and to have your sug- 
gestions. _ ,. T „. 

Believe me, dear Sir, 

with much regard 

Very faithfully yours, 

Charles Scmnek. 



1 Wis. Reports {Dixon's Notes), iii., 3rd case. 

2 Copies of letters in possession of the Wisconsin Historical Society. 



n 



138 WISCONSIN HISTORICAI, SOCIETY. 

Washington, 8th Aug., '56. 

My Dear Sir — I was abovit to suggest to you to have the opinions of the 
court and the arg'ts of counsel in Mr. Booth's case collected and published 
in a pamphlet, when I observed that there was a pamphlet containing the 
most valuable portion of them. Let me ask you to do me the favor of 
sending me a copy of this pamphlet to my address at Boston. 

I congratulate you, my dear sir, upon your magnificent effort, which 
does honor not only to your State but to the country. That arg't will live 
in the history of this controversy. 

God grant that Wisconsin may not fail to protect her own rights and 

the rights of her citizens in the exigency now before her! To her belongs 

now the lead which Massachusetts should have taken. Of the final result 

I have no doubt. 

Believe me, my dear Sir, 

with high esteem 

Faithfully yours, 

Charles Sumner. 

P. S. Judge Smith's opinion showed the true metal. That too will 

live. Indeed, you and he have been making history. 

Byron Paine, 



VII. — The United States Supreme Court Decision. — Booth Par- 
doned. 

This second Booth case also cama before the supreme court at 
Washington. On the twenty-first of April following, the at- 
torney-general of the United States presented a petition to the 
chief justice of the supreme court, averring that the State court 
had no jurisdiction in the case, and praying for a writ of error. 
The writ was granted, returnable on the first Monday of Decem- 
ber, 1855, and a citation for the defendant to appear on that 
day was issued by the chief justice. The supreme court of Wis- 
consin, however, directed the clerk of the court to make no re- 
turn to the tor it of error, and to enter no order upon the journals 
or records of the court, concerning the same. Here came a sharp 
conflict between the highest court of the State and the highest 
court of the United States. At length the United States su- 
preme court assumed jurisdiction of the Booth cases, March 0, 
1857, upon a certified copy of proceedings, not upon the official 
record. The case was not reached for argument until the De- 
cember term, 1858. In each of the Booth cases, the judgment of 



THE FUGITIVE SLAVE LAW IN WISCONSIN. 1 39 

the supreme court of Wisconsin was reversed. Tlie opinion of 
the court was read by Chief Justice Taney, and held : ' 

1st. The process of a State court or judge has no authority 
beyond the limits of the sovereignty which confers the judicial 
power. 

2nd. A habeas corpus, issued by a State court or judge, has 
no authority within the limits assigned by the constitution of 
the United States. The sovereignty of the United States, and 
of a State, are distinct and independent of one another within 
their respective spheres of action, although both exist and exer- 
cise their powers within the same territorial limits. 

3rd. When a writ of habeas corpus is served on a marshal or 
other person having a prisoner in custody under the authority 
of the United States, it is his duty, by a proper return, to 
make known to the State judge or court the authority by which 
he holds him. But, at the same time, it is his duty not to 
obey the process of the State authority, but to obey and exe- 
cute the process of the United States. 

4th. This court has appellate power in all cases arising under 
the constitution and laws of the United States, with such ex- 
ceptions and regulations as Congress may make, whether the 
cases arise in a State court or in an inferior court of the United 
States. And, under the act of Congress of 1789, when the de- 
cision of the State court is against the right claimed under the 
constitution or laws of the United States, a writ of error will 
lie to bring the judgment of the State court before this court 
for reexamination and revision. 

5th. The act of Congress of September 18, 1850, usually called 
the fugitive slave law, is constitutional in all its provisions. 

6th. The commissioner appointed by the district court of the 
United States, for the district of Wisconsin, had authority to 
issue his warrant and commit the defendant in error, for an of- 
fense against the act of September 18, 1850. 

7th. The district court of the United States had exclusive 
jurisdiction to try and punish the offense; and the validity of 
its proceedings and judgment cannot be reexamined and set 
aside by any other tribunal. 



^ HowarcVs U. S. Reports, xxi., p. 506. 



I40 WISCONSIN HISTORICAL SOCIETY. 

This decision gave practically the finishing stroke to the his- 
tory of a most important controversy, settling as it did for the 
first time, with clearness and accuracy, the limits of State sover- 
eignty and State jurisdiction, and the want of power of State 
courts and State judges to interfere with or interrupt the 
proceedings of the Federal courts in actions of which juris- 
diction has been conferred upon them by the constitution of the 
United States. 

The United States supreme court sent its remittitur to the 
Wisconsin court, to reverse their decision and return Booth 
into Federal custody. This command the State court refused to 
obey." Nevertheless, on March 1, 1860, Booth was again ar- 
rested by the United States marshal and confined in the custom- 
house in Milwaukee. AjDplication was at once made to the 
State supreme court for a writ of habeas corjms, but Justice 
Paine, having been Booth's counsel, declined to act; and the 
new justice, Judge Dixon, holding the fugitive slave act consti- 
tutional and valid, the court was evenly divided and the ap- 
plication failed.'- Booth therefore went to prison. 

August 1, Booth was rescued from the G-overnment prison, 
and escaped to the northern part of the State. ^ He enjoyed his 
freedom but a short time, however, being reai'rested at Berlin, 
October 8, and remaining in prison until enough pressure was 
brought to bear upon the President to secure his pardon. The 
pardon was signed just before Lincoln's inauguration, and Booth 
was at last free. 

VIII.— The Judicial Election o/ 1859. 

The election of 1859 gives further illustration of the State 
sovereignty sentiment of Wisconsin, at this time. Byron Paine, 
a comparatively young man, ran for associate justice of the 
supreme court, his opponent being William P. Lynde, a lawyer 
of much longer standing. Paine ran on an anti-slavery and 
qtcasi State-rights issue. In his argument in the Booth trial, 

' Wis. Rejyorts {Vilas and BryanVs Notes), ii., p. 517. 
'The Milwaukee Sentinel for the first week of March, 1860, toll.s of the 
arrest and application for the writ of habeas corpus. 
» Milwaukee Seufiucl, Aug. 2, 1860. 



THE FUGITIVE SLAVE LAW IN WISCONSIN. I4I 

after quoting fi-om the Virginia and Kentucky resolutions, he 
had said: " The States should have the right to judge, in the last 
resort, when their sovereignties are encroached upon, and to take 
measures for their protection. " 

The campaign was an exciting one. A newspaper was pub- 
lished at Monroe, bearing the title Wisconsin State Rights. The 
resolutions of Madison and Jefferson were constantly referred to 
in the press. Numerous communications appeared in the papers, 
signed "State Rights;" and the Milwaukee Sentinel, just before 
the election, told its readers to vote for " State rights and Byron 
Paine. " State rights and Byron Paine won. Paine received 
40,500 votes to Lynde's 38,355. After the election, Charles 
Sumner wrote Judge Paine from Rome, Italy, as follows:' 

Rome, 12th May, '59. 

Mt Dear Sir — Of late I have received very little political intelligence 
from home, and in the depression of a protracted disability I have hardly 
missed it. But to-day I have been gladdened and strengthened by the news 
that the people of Wisconsin have elected you a Judge of the Sup. Ct. on 
the issue distinctly presented, that it is the duty of the State to throw the 
protection of its process around all within its borders. Better news for 
Freedom never, in the long line of history, reached this ancient capital. 
• Wherever I go I feel the new influence, and the venerable monuments 
about me flash for the moment with the brightness of youth. 

God bless the people of Wisconsin who know their rights, and knowing 
dare maintain! God bless the champion they have chosen! God bless the 
cause! To the people, to the champion, and to the cause, an American 
citizen far away in a foreign land sends the best wishes of his heart. 

In this event I hail the certain beginning of a new order of things in our 
country. Trial by Jury, Habeas Corpus and the other safeguards of the 
rights of all — struck down by the preposterous and tyrannical pretensions 
of slavery under the National constitution — will again become realities! 
A happy day it will be for the peace and good name of the Republic when 
this is achieved. Meanwhile Wisconsin has nobly set the example which 
older States must follow. The end cannot be doubtful. 

I congratvilate you, my dear Sir, upon the distinguished position you 

have been called to occupy! but permit me to add that, honorable as it is 

to be a judge, the cause you represent gives to you a better glory. 

Believe me, my dear Sir, 

with much regard 

Very faithfully yours, 

Charles Sumner. 
The Hon^ble Byron Paine. 

* A copy of the letter is in the library of the Wisconsin Historical Society. 



142 WISCONSIN HISTORICAL SOCIETY. 

IX. Xullifying Legislative Acts. 

Durino- the fifties, several of the Northern States passed "per- 
sonal liberty " laws. Wisconsin passed such a law in 1857, its 
title being "An Act relating to the writ of habeas corpus to 
persons claimed as fugitive slaves, the right of trial by jury, and 
to TDrevent kidnaping in the State." ' The act made it the duty 
of the district attorneys in the counties to faithfully use all law- 
ful means to "protect, defend, and procure to be discharged, 
every person arrested or claimed as a fugitive slave." It was 
prov^ided that any person who should represent any free person 
to be a slave, should be fined $1,000. Two witnesses wei'e to be 
required, to prove a person a slave. Perhaps the most impor- 
tant clause of all was, that declaring that judgments recovered 
against any one for not obeying the terms of the fugitive slave 
act, should not constitute a lien. The effect of this act would 
be practically to nullify the hated provisions of the fugitive 
slave law% in Wisconsin. 

By a vote of 47 to 37 in the assembly, and 13 to 12 in the 
senate, the legislature of 1859 took another important step, in 
adopting joint resolution.^ relative to the decision of the United 
States supreme court reversing the decision of the supreme 
court of Wisconsin.- They I'ead as follows: 

" Whereas, The supreme court of the United States has as- 
sumed appellate jurisdiction in the matter of the petition of 
Shemnan M. Booth for a writ of habeas corpus presented and 
prosecuted to final judgment in the supreme court of this State, 
and has, without process, or any of the forms recognized by 
law, assumed the power to reverse that judgment in a matter in- 
volving the personal liberty of a citizen, asserted by and ad- 
judicated to him by the regular course of judicial proceedings upon 
the great writ of liberty secured to the people of each State by 
the constitution of the United States: 

" And whereas, Such assumption of power and authority by 
the supreme court of the United States, to become the final 
arbiter of the liberty of a citizen, and to override and nullify 

' Laws of Wis., 1857, p. 12. 
^Laws of n7.s-., 1859, p. 217. 



THE FUGITIVE SLAVE LAW IN WISCONSIN. 143 

the judgment of the State courts' declaration thereof, is in di- 
rect coiifiict with that provision of the United States constitu- 
tion which secures to the people the benefits of the writ of habeas 

corpus : 

"Therefore resolved, The senate concurring, that we regard 
the action of the supreme court of the United States, in assum- 
ing jurisdiction in the case before mentioned, as an arbitrary 
act of power, unauthorized by the Constitution, and virtually 
superseding the benefit of a writ of habeas corpus, and prostrat- 
ing the rights and liberties of the people at the feet of unlim- 
ited power. 

"ResolceA That this assumption of jurisdiction by the Federal 
judiciary, in the said case, aad without process, is an act of un- 
delegated power, and therefore without authority, void and of 

no force. " 

The next resolution quoted the Kentucky statement of the 
compact theory of the constitution, and the resolutions then 

continued : 

-Resolved, That the principle and construction contended for 
by the party which now rules in the councils of the nation, that 
the general government is the exclusive judge of the extent of 
the powers delegated to it, stop nothing short of despotism, 
since the discretion of those who administer the government, 
and not the Constitution, would be the measure of their power; 
that the several States that formed that instrument, being sover- 
eio-n and independent, have the unquestionable right to judge 
of^ts infraction; and that a positive defiance, by those sover- 
eignties, of all unauthorized acts done or attempted to be done 
umler color of that instrument, is the rightful remedy." 

It is perhaps significant that the greater portion of the last 
resolution is taken verbatim from the radical Kentucky resolu- 
tions of 1799, with the substitution of the words "a positive 
defiance " for the word " nullification." 

These resolutions, and the personal liberty law of 1857, were 
Wisconsin s strongest formal protests against the fugitive slave 
law. „ 

Wisconsin's action was guided by her opposition to slavery. 



144 WISCONSIN HISTORICAL SOCIETY. 

"When the nationarauthority seemed united to the slave cause, 
she took high State sovereignty ground. On the eve of the 
War of Secession, through her courts, her legislatures, and her 
elections, she stood by the compact theory of government, 
and declared for nullification. When the slave cause was de 
fended by the doctrine of State sovereignty, and the nation 
aimed to coerce South Carolina from her secession under that 
theory, Wisconsin found her interest united with the national 
cause, and sent her forces to the field in eager and effective 
support of the Federal government. It was a reversal of theory, 
with consistency of purpose, hardly paralleled in history. 



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